Cross v. Cleaver

Decision Date10 April 1998
Docket NumberNo. 97-3441,97-3441
Citation142 F.3d 1059
Parties76 Fair Empl.Prac.Cas. (BNA) 819, 73 Empl. Prac. Dec. P 45,345 Vicki CROSS, Plaintiff-Appellee, v. Emanuel CLEAVER II, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Dale H. Close, Kansas City, MO, argued (Lisa S. Morris, Kansas City, MO, on the brief), for Defendants-Appellants.

James Mitchell Crabtree, Lenexa, KS, for Plaintiff-Appellee.

Before McMILLIAN and FAGG, Circuit Judges, and BENNETT, * District Judge.

BENNETT, District Judge.

                                               TABLE OF CONTENTS
                  I.  BACKGROUND ......................................................... 1063
                      A.    Factual Background ........................................... 1063
                      B.    Procedural Background ........................................ 1064
                 II.  ANALYSIS ........................................................... 1065
                      A.    Applicable Standards ......................................... 1065
                            1.  Judgment as a matter of law .............................. 1065
                            2.  Improper jury instructions ............................... 1067
                      B.    Preservation Of Errors ....................................... 1069
                            1.  The objection to the liability standard .................. 1069
                            2.  The objection to the combined instruction ................ 1070
                      C.    Employer Liability For Retaliation ........................... 1070
                            1.  Retaliation under Title VII .............................. 1071
                            2.  Standards for employer liability for harassment .......... 1072
                            3.  The nature of retaliatory action and the standard for
                                  employer liability ..................................... 1073
                      D.    Combined Retaliation Instruction ............................. 1074
                            1.  Retaliation under Missouri law ........................... 1075
                            2.  Cross's state-law retaliation claim ...................... 1076
                III.  CONCLUSION ......................................................... 1077
                

In this appeal, we are asked to consider the standard for employer liability for retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., a question this court has never directly addressed. Members of a city police board of commissioners appeal the denial of their post-trial motion for judgment as a matter of law on a female police officer's claim of retaliation by the chief of police and other members of the police department after the police officer filed a charge of sexual harassment. The board members assert that the trial judge 1 erred in denying their post-trial motion, which asserted that the jury's verdict was against the weight of the evidence, because there was no evidence adduced at trial that the board either took part in retaliatory actions or that the board "knew or should have known" of any retaliatory actions by members of the police department. The board members argue that this "knew or should have known" standard applies by drawing an analogy to the standard for employer liability in hostile environment cases. The police officer counters that the board members failed to preserve this error by timely objection, but that, even if they did, the correct standard for employer liability on a Title VII retaliation claim is imputed liability, as in quid pro quo harassment cases. Case law demonstrates the currency of both standards among the federal courts.

Additionally, the board members contend that the trial judge erred by submitting the police officer's separate retaliation claims under Title VII and the Missouri Human Rights Act (MHRA) to the jury in the same instruction. They argue that because of this error, once the trial judge ruled that sovereign immunity barred the retaliation claim under the MHRA, the court could not determine under which law--state or federal--the jury had made its award of damages for retaliation. The police officer counters that the board members also failed to preserve this error, but that, in any event, the verdict in her favor should stand, because in this case, the elements of her state and federal retaliation claims are identical.

We affirm.

I. BACKGROUND
A. Factual Background

The facts pertinent to this appeal are the following. Plaintiff-appellee Vicki Cross has been a police officer with the Kansas City, Missouri, Police Department (KCMPD or the Department) since April of 1990. The KCMPD does not exist as an entity that can be sued, and the parties agree that Cross's employer was and is in fact the Board of Police Commissioners, the governing body of the KCMPD and the entity that has the exclusive management and control of the Department. Individual past and present members of the Board are the defendant-appellants here. Although the Board is the governing body and Cross's employer, the Chief of Police of the KCMPD is responsible for the actions of the Department, attends Board meetings, and is required to provide a disciplinary report to the Board. At the times pertinent to Cross's lawsuit, the Chief of Police was Steven Bishop. Although Bishop was originally a defendant below, in his official capacity, the current Chief of Police, Floyd O. Bartch, was substituted as a defendant just prior to trial.

While working for the Department, Cross was assigned, at various times, to three out of five of its patrol divisions and to the Vice Unit. At the time of the events giving rise to her claims, she was assigned to the North Patrol Division. In 1991 or 1992, she met and began dating another police officer, Dan Garrett. Eventually, the relationship deteriorated to the point that, in February of 1994, Cross asked a mutual friend, a police sergeant, to tell Garrett to leave Cross alone. However, the sergeant told Cross that he believed that Garrett's conduct, as alleged by Cross, constituted sexual harassment in violation of departmental policy. The sergeant therefore told Cross to file a written complaint with the Department and the sergeant also prepared a companion memorandum. Cross's complaint was filed on February 24, 1994.

As a result of Cross's complaint and the memorandum from the sergeant, the Department began a "miscellaneous" investigation, which included taking statements from Cross, Garrett, and others. On March 23, 1994, a Deputy Chief of the Department sent Garrett a letter instructing him to stay away from Cross until the conclusion of the investigation. Two days later, Garrett retired from the Department.

Garrett was a friend and long-time co-worker of then Chief of Police Steven Bishop. Bishop testified that he learned of Cross's complaint against Garrett on February 25, 1994, the day after the complaint was filed. Garrett and Bishop discussed the complaint on February 28, 1994, at which time Garrett testified that Bishop said he would "get the bitch," referring to Cross. Bishop denies making that statement, but does not deny that he discussed the sexual harassment complaint with Garrett on February 28, 1994.

Cross offered sufficient evidence from which a jury could find that retaliation against her began almost immediately after her complaint of sexual harassment was filed. That retaliation consisted of investigations, suspensions, and transfers of Cross. More specifically, Cross presented evidence that in February of 1994, Bishop encouraged the Gladstone Police Department--another municipal police department with jurisdiction adjacent to the North Patrol Division of the KCMPD--to start an investigation of alleged sexual misconduct by Cross and a Gladstone Police Officer, Kenny Buck, whom Cross had started dating. The Gladstone Police Department's investigation was eventually dismissed, because investigators found no merit to the charges of sexual misconduct by Cross and Buck. Cross also presented evidence that in April of 1994 she was transferred from the North Patrol Division, an assignment that was personally beneficial to her, to the East Patrol Division, a less convenient assignment. Also in April of 1994, apparently for the first time, complaints by Cross's ex-husband about divorce-related matters were "written up," instead of disregarded as involving only personal matters, not police work. All but three of Cross's ex-husband's complaints were deemed inappropriate for any investigation, and Cross's ex-husband recanted one of those three.

However, investigations of Cross were instigated concerning allegations that she had "participated in a plan or scheme to have a traffic ticket fixed" and that she had seen cocaine in a house, but had done nothing about it. Although Cross was suspended for twelve days as the result of the ticket-fixing charge, the Grievance Committee found that Cross had not participated in a scheme to "fix" the ticket, but had exhibited poor judgment in passing along money and the ticket without definitely knowing their purpose. Although the committee recommended that other allegations be stricken from her record as unsubstantiated, Chief Bishop refused to correct Cross's records. At about the same time, Cross was disciplined for missing a court appearance, even though, according to Cross, the desk sergeant admitted he should have filed a continuance.

The most substantial of the allegedly retaliatory actions, however, was Cross's suspension without pay for four months during 1995 pending investigation of charges by her ex-husband that she had committed a "burglary" when Cross and the ex-husband's former girlfriend entered his residence and removed a tape player. The Department instituted a criminal investigation, but when the city and county prosecutors both declined to prosecute the incident as either a "burglary" or a "trespass," the investigation concluded. Despite the fact that the internal criminal investigation apparently lasted only days, Cross was not returned to work for some months more. Instead, she remained...

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